2010 SCC 3
Omar Khadr, a Canadian citizen, had been detained by the US military at Guantanamo Bay since 2002, when he had been a minor. He was interviewed by Canadian officials in 2003 and 2004, the second time with knowledge on the part of the Canadian officials that he had been subjected to a sleep deprivation technique to make him more compliant under interrogation. In Canada (Justice) v Khadr, 2008 SCC 28, the Supreme Court held that the regime in place at the time of the interrogations violated Canada’s international human rights obligations and Khadr’s s.7 Charter rights. The Prime Minister of Canada eventually announced his decision not to repatriate Khadr, despite the latter’s repeated requests that this be done. Khadr applied for judicial review of the decision, alleging that it violated his s.7 Charter rights. The request succeeded at trial and on appeal, and was appealed to the Supreme Court.
The Supreme Court agreed with the courts below that Canada had been an active participant in a process that clearly violated Khadr’s s.7 Charter rights, and that Khadr was therefore entitled to a remedy under s.24(1) of the Charter. However, the Supreme Court found that the trial judge had erred in ordering Khadr’s repatriation, given the constitutional responsibilities of the executive branch in making decisions on foreign affairs matters. Instead, the Supreme Court found that the appropriate remedy would be to declare that Khadr’s Charter rights had been violated and leave it to the federal government to respond.
Faculty of Law Commentary and Research Discussing Canada (Prime Minister) v Khadr
Kent Roach, “Enforcement of the Charter – Subsections 24(1) and 52(1),” (2013) 62 SCLR (2d) 473-537.
Audrey Macklin, “Comment on Canada (Prime Minister) v Khadr (2010),” (2010) 51 SCLR (2d) 295-331.
Kent Roach, “Section 7 of the Charter and national security: rights protection and proportionality versus deference and status,” (2010-2011) 42 Ottawa L Rev. 337-367.